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NORML Legal Committee

  • by Paul Armentano, NORML Deputy Director February 13, 2018

    Marijuana and the LawA judge for the Federal District Court in Manhattan will hear arguments Wednesday in a lawsuit challenging the constitutionality of federal cannabis prohibition. Lawyers for the plaintiffs in the case include NORML Legal Committee member Joseph Bondy and Empire State NORML Director David Holland.

    The 98-page complaint contends that the federal government “does not believe, and upon information and belief never has believed” that cannabis meets the requirements for a Schedule I designation under the Controlled Substances Act. It further argues that current administrative mechanisms in place to allow for the reconsideration of cannabis Schedule I classification are “illusory.”

    A judge for the Federal District Court in Sacramento heard similar arguments in a 2014 legal challenge, also spearheaded by members of the NORML Legal Committee, but ultimately rejected them – opining: “At some point in time, a court may decide this status to be unconstitutional. But this is not the court and not the time.”

    Plaintiffs in the current lawsuit include a former NFL football player, a disabled military veterans, two children with severe movement disorders, and the non-profit group, the Cannabis Cultural Association. Plaintiffs argue that federal prohibition violates their civil and constitutional liberties, including their right to freely travel within the United States. They also argue that the federal prohibition of cannabis is “grounded in discrimination and [is] applied in a discriminatory manner.”

    Lawyers for the Justice Department are arguing for a dismissal of the suit, opining: “There is no fundamental right to use marijuana, for medical purposes or otherwise. Because such a right is not ‘implicit in the concept of ordered liberty’ or ‘deeply rooted in this Nation’s history,’ the Court should reject such a claim.”

    Full text of the complaint, Washington et al. v. Sessions et al., is available online here.

  • by Paul Armentano, NORML Deputy Director May 8, 2013

    Longtime Florida activist Cathy Jordan, a 63-year-old woman who consumes cannabis to mitigate symptoms of amyotrophic lateral sclerosis (ALS aka Lou Gehrig’s disease), a debilitating condition that she has lived with since 1986, today filed a suit against Sheriff Brad Steube of Manatee County, FL.

    Ms. Jordan alleges wrongful conduct on the part of the sheriff’s department when, on February 15, 2013, they raided her home and confiscated 23 medical cannabis plants, which were being cultivated for her by Cathy’s husband Robert Jordan. The Jordans were both cooperative when the sheriff’s department arrived at their home, and they acknowledged they were growing medical marijuana for Cathy’s medical use. The police raid of the Jordan’s home came just days after lawmakers introduced legislation, the Cathy Jordan Medical Cannabis Act, which sought to authorize the physician-supervised use of cannabis for those diagnosed with serious debilitating conditions. (Florida lawmakers failed to hold hearings or vote on the measure.)

    After the Manatee County State Attorney’s office reviewed the facts of the case, they issued a memorandum on April 2, 2013 declining to prosecute either Cathy or her husband. The Manatee County State’s Attorney’s office found that they could not likely overcome a medical marijuana necessity defense, which would be raised by the defendant should a prosecution be initiated. However, the sheriff’s department has refused to return any of the cannabis that they confiscated from Ms. Jordan during the February 15 raid.

    With this lawsuit, the plaintiffs seek a declaratory judgment finding that they have a legal right to cultivate and possess medical marijuana under Florida law; an injunction barring the sheriff’s department from making further seizures of medical marijuana from Cathy and Robert Jordan; and an injunction barring the initiation of criminal charges against either of the plaintiffs for their continued cultivation and possession of medical marijuana.

    The lawsuit has been filed by Norm Kent of Fort Lauderdale, Chair of the NORML Board of Directors. NORML intends to file a friend of the court brief in the case once the defendants are served.

    Kent stated: “This suit embodies NORML’S commitment to patients who have a medical need for marijuana, while simultaneously showing how the responsible use of cannabis by adults should not be restricted by law enforcement authorities. We intend to prevail in this suit so that seriously ill patients like Cathy no longer have to fear arrest or state interference for simply using their medicine.”

    Added NORML Legal Counsel Keith Stroup: “Cathy Jordan is a courageous woman who has been fighting for many years to legalize the medical use of marijuana for herself and other seriously ill patients. We are proud to stand with Cathy and Robert Jordan to challenge he senseless arrest of patients who use marijuana medically.”

    Florida is not among the 18 US states that presently exempt qualified patients from arrest for engaging in physician-authorized cannabis therapy.

  • by Paul Armentano, NORML Deputy Director October 25, 2012

    On Wednesday, October 24, a group of California dispensary operators, medical cannabis providers, and patients, as Plaintiffs, filed their Opening Brief before the Ninth Circuit Court of Appeals in San Francisco, asking the Circuit Court to hold that Plaintiffs, in their continuing litigation against the Federal Government, have a constitutional Ninth Amendment and Substantive Due Process fundamental right to distribute, possess and use medical cannabis. The brief, filed by members of the NORML Legal Committee, also contends that the Federal Government’s criminal prohibition of medical cannabis has no rational basis and thus violates the Equal Protection Clause of the Constitution. Plaintiffs further contend that the Federal Government is Judicially Estopped from enforcing medical marijuana prohibition in states that allow such activity because the Administration has previously asserted in public and in court that they would no longer do so.

    Plaintiffs in November 2011 initially filed suit in California’s four federal districts against Eric Holder (United States Attorney General), Michelle Leonhart (Administrator of the Drug Enforcement Administration and the individual US Attorneys of each California District: Sacramento, San Francisco, Los Angeles, and San Diego — following increased efforts from the Obama administration and the state’s US Attorneys to crack down on the production and distribution of medical cannabis. Plaintiff’s are asking the Ninth Circuit to reverse the district court’s dismissal of that complaint, and to allow the plaintiff’s the opportunity to prove their contentions in a court of law.

    Three members of the NORML Legal Committee — Matt Kumin and David Michael from San Francisco and Alan Silber from Roseland, NJ — are representing the Plaintiffs in this appeal. In a press release, they stated, “The ill, in compliance with state law and with a physician’s recommendation, are made to suffer needlessly by the federal threats and denial of access to medical cannabis due to irrational governmental policy. Judicial intervention is the only way to stop the federal government from acting irrationally and from willfully ignoring the science supporting the use of cannabis as medicine.”

    The cases are El Camino Wellness Center, et al. v. Eric Holder et al. (Sacramento), Marin Alliance for Medical Marijuana, et al. v. Eric Holder, et al. (San Francisco), and Alternative Community Health Care Cooperative, et al. v. Eric Holder, et al. (San Diego).

    Other NLC attorneys who participated in the litigation of these cases are Lance Rogers of San Diego, Mark Reichel of Sacramento and Edward Burch of San Francisco.

    A copy of Plaintiff’s Opening Brief is available here.

  • by Paul Armentano, NORML Deputy Director April 5, 2012

    Members of the NORML Legal Committee filed suit yesterday against the State of New Jersey over regulators failure to implement the Compassionate Use of Medical Marijuana Act.

    First signed into law by former Gov. Jon Corzine on January 18, 2010, the law — which establishes the creation of up to six state-licensed ‘alternative treatment centers’ to provide medicinal cannabis to qualified patients — was initially scheduled to take effect in July 2010. Since that time state regulators, at the behest of present Gov. Chris Christie, have unduly delayed the law’s implementation. To date, not a single patient in New Jersey has been afforded legal protections under the Act in the 27 months since the measure was signed into law.

    On Wednesday, April 4, NORML Legal Committee attorneys William H. Buckman of Moorestown and Anne M. Davis of Brick filed a lawsuit on behalf of a New Jersey medical patient who would qualify for cannabis access. The suit also represents one of the few medical doctors who have registered with NJ to recommend medical marijuana. Named in the suit are the Department of Health and Senior Services (DHSS) Commissioner Mary O’Dowd and the newly appointed director of the Medicinal Marijuana Program John O’Brien.

    Read the press release below:

    CONSTITUTIONAL LAWSUIT FILED OVER FAILED NJ MEDICAL MARIJUANA PROGRAM

    Trenton: Today a lawsuit was filed against the State of New Jersey over the failure to implement the Compassionate Use Medical Marijuana Act. Named in the suit are the Department of Health and Senior Services (DHSS) Commissioner Mary O’Dowd and the newly appointed director of the Medicinal Marijuana Program John O’Brien.

    Civil rights attorneys William H. Buckman of Moorestown and Anne M. Davis of Brick brought the suit on behalf of a New Jersey medical patient who would qualify for cannabis access. The suit also represents one of the few medical doctors who have registered with NJ to recommend medical marijuana.

    The compassionate use law was passed in January 2010 with a six-month implementation timeline. But since 2010 a series of politically motivated regulatory, legislative and bureaucratic delays have kept the program from operating at all. None of the six approved Alternative Treatment Centers have been fully permitted by DHSS to open.

    “We represent a patient who suffered actual damages as a result of these delays,” said Anne Davis, “He cannot utilize the cannabis because New Jersey’s lack of a working program means he could lose his disability pension if he tested positive for cannabis.”

    Davis continued, “Our neighbors with AIDS, cancer, MS and the worst of medical conditions have testified before the legislature and changed the law. Now, patients and doctors have to go to court to win the rights that they should have already been afforded.”

    The lawsuit gathers more than two years of facts demonstrating that those in charge of the implementation process for New Jersey’s medical marijuana program have been unable or unwilling to put the law into place.

    “Today we are filing suit to require the DHHS to do what every other citizen must do — follow the law,” said William Buckman, “We are also insisting that pursuant to the legislature’s will, sick people have access to medical marijuana without fear of arrest.”

  • by Paul Armentano, NORML Deputy Director March 2, 2012

    A federal judge in Sacramento this week dismissed a federal lawsuit filed in November by members of the NORML Legal Committee against the US Department of Justice, US Attorney General Eric Holder, and DEA Director Michele Leonhart. The lawsuit (read it here), one of four filed simultaneously in the state’s four federal districts, argues that the Justice Department’s ongoing crackdown against medical marijuana providers and distributors in California is in violation of the Ninth, Tenth, and Fourteenth Amendments to the US Constitution because the use of cannabis therapeutically is a fundamental right. Petitioners also argue, using the theory of judicial estoppel, that the Justice Department had previously affirmed in public memos and in statements made in federal court that it would no longer use federal resources to prosecute cannabis patients or providers who are compliant with state law.

    On Wednesday, US District Judge Garland Burrell, Jr., rejected those arguments and and granted the respondent’s dismissal motion. He denied petitioners request for public hearings prior to making his ruling.

    Judge Burrell rejected plaintiffs’ Ninth and Tenth Amendment challenges, finding: “Since the Supreme Court has held the that CSA’s (federal Controlled Substances Act) categorical prohibition of the possession, manufacturing, and distribution of marijuana does not exceed Congress’ authority under the Commerce Clause (Article I Section 8, Clause 3 of the US Constitution), plaintiffs do not have a viable …. claim.”

    He also rejected plaintiffs’ equal protection arguments, finding that the Justice Department’s actions in California mimic efforts the federal government has taken against “similarly situated individuals” elsewhere. Judge Burrell also cited court rulings finding that defendants in previous challenges have failed to meet the “heavy burden of proving the irrationality of the schedule I classification of marijuana.”

    Finally, Judge Burrell dismissed plaintiff’s judicial estoppel clam, which argues that defendants’ “recent crackdown … against medical cannabis patients flouts the representations made on the record by the Department of Justice” in public memos and statements in court. Responding to this challenge, Judge Burrell determined, “Since judicial estoppel does not apply unless ‘a party’s later position [is] ‘clearly inconsistent with its earlier position,’ and the Ogden memo does not contain a promise not to enforce the CSA, defendants’ enforcement of the CSA is not inconsistent.”

    Commenting on the ruling, Attorney David Michael of San Francisco, who along with Matt Kumin and Alan Silber were the lead attorneys in these four challenges, said “We are disappointed, but not discouraged, that the District Courts have thus far denied us the relief we had sought. They are constrained by existing precedent, and the result was not unexpected. It is the Ninth Circuit where we hope to find a receptive audience, and, with the Lawrence v. Texas decision, we may also have a more receptive audience in the Supreme Court, should the issue go there.”

    Judges for the Ninth Circuit had previously determined in Raich v Gonzalez: “For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, … (it) may be upon us sooner than expected.”

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